Jensen v Police
[2020] NZHC 726
•8 April 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-0005
[2020] NZHC 726
BETWEEN HIRA JENSEN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 16 March 2020 Appearances:
S J Galler for Appellant J Kang for Respondent
Judgment:
8 April 2020
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 8 April 2020 at 12.15 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: ...................................
Solicitors: Meredith Connell, Crown Solicitor, Auckland Counsel: S J Galler, Auckland
JENSEN v POLICE [2020] NZHC 726
[1] The appellant, Mr Jensen, appeals against a sentence of two years, nine months’ imprisonment imposed by Judge Collins on 19 November 2019.1
[2] I must allow the appeal if satisfied there is an error in the sentence imposed and a different sentence should be imposed.2 I must dismiss the appeal in any other case. The Court does not simply substitute its own view for that of the original sentencing Judge.3 Rather, it must be shown the sentence is manifestly excessive or wrong in principle.4 The focus is on the end sentence, rather than the process by which the sentence was reached.5
Background
[3] Mr Jensen was for sentence on the following charges, committed on the dates shown:
(a)burglary — 5 July 2016;6
(b)robbery — 5 July 2016;7
(c)failing to answer police bail — 29 August 2016;8
(d)common assault (x 2) — 10 December 2016;9
(e)wilful damage — 10 December 2016;10
(f)failing to answer District Court bail (x 4) — June 2016, December 2016 (x 2), and January 2017;11
1 Police v Jensen [2019] NZDC 23914.
2 Criminal Procedure Act 2011, s 250(2).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
4 Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R, above n 3, at [30]–[35].
5 Tutakangahau v R, above n 3, at [36].
6 Crimes Act 1961, s 231. The maximum penalty is 10 years’ imprisonment.
7 Section 234. The maximum penalty is 10 years’ imprisonment.
8 Bail Act 2000, s 38. The maximum penalty is 1 years’ imprisonment or a fine of $2,000.
9 Crimes Act, s 196. The maximum penalty is 1 years’ imprisonment,
10 Summary Offences Act 1981, s 11. The maximum penalty is 3 months’ imprisonment or a fine of
$2,000.
11 Bail Act, s 38. The maximum penalty is 1 years’ imprisonment or a fine of $2,000.
(g)resisting police — 24 February 2017;12 and
(h)escaping lawful custody — 24 February 2017.13
[4] The burglary was of a residential address, with no forced entry. The sole (female) occupant was not home at the time, and Mr Jensen gained entry through an unlocked door or window. Once inside, Mr Jensen stole a television and an “igloo” box from the woman’s bedroom (never recovered), and then spat on the wall. It was this which ultimately led to Mr Jensen’s identification.
[5] Mr Jensen then committed the robbery in a multi-level apartment building. Mr Jensen approached a 53-year-old woman in the foyer and grabbed her handbag. The victim held onto the bag and offered Mr Jensen money instead, which Mr Jensen declined. A struggle ensued, the victim only releasing her handbag when Mr Jensen kicked her in the head, face and chest.
[6] Having spent the evening of 10 December 2016 drinking with his father, and in the course of an argument, Mr Jensen broke a window, hence the wilful damage charge. The common assaults were against the police officers who attended.
[7] As appears from the chronology, Mr Jensen failed to appear on several occasions, including in January 2017, and resisted when the police caught up with him in February 2017.
[8] Mr Jensen was 21 years of age at the time he committed the burglary and robbery, and 22 when he committed the other offending. Although he entered guilty pleas at a relatively early stage, Mr Jensen failed to appear for sentencing on 9 August 2017 and was not apprehended until August 2019. Mr Jensen was sentenced on 19 November 2019.
[9] The Judge adopted a starting point of two years’ imprisonment for the robbery. The Judge increased this by nine months’ imprisonment for the burglary and five
12 Summary Offences Act, s 23. The maximum penalty is 3 months’ imprisonment or a fine of
$2,000.
13 Crimes Act, s 120. The maximum penalty is 5 years’ imprisonment.
months’ imprisonment for the other offending, comprising three months for the February 2017 offending, one month for the 10 December 2016 offending and one month for the failures to answer bail. The uplifts brought the final starting point to three years, two months’ imprisonment. The Judge did not uplift for Mr Jensen’s prior convictions (see below), declined a discount for youth and gave a 15 per cent discount for Mr Jensen’s guilty pleas. This brought the end sentence to two years, nine months’ imprisonment, this being Mr Jensen’s first sentence of imprisonment.
[10] Mr Galler, counsel for Mr Jensen, contends the sentence was manifestly excessive because the uplifts were excessive; there should have been a discount for youth; and the discount for Mr Jensen’s guilty pleas was insufficient. Mr Kang, for the Crown, contends the end sentence was within range and there is no basis for interfering with it on appeal.
Uplifts and totality
[11] In his written submissions, Mr Galler challenged both the uplift for the burglary and that for the other offending, submitting the additional 14 months’ imprisonment rendered the end sentence wholly out of proportion to the gravity of the overall offending or, in other words, breached the “totality” principle.14
[12] As I said to Mr Galler during the hearing, on its face, the five-month uplift for the offending after 5 July 2016 does not appear excessive. That leaves the Judge’s uplift of nine months’ imprisonment for the burglary, which Mr Galler submits should not have been more than seven months.
[13] The Judge arrived at the nine-month uplift on the basis the starting point for the burglary would have been “at least 18 months if it was on its own”, and he would uplift by 50 per cent of that, to ensure the final starting point was proportionate.15 Counsel take the Judge’s “at least 18 months” to be a reference to Arahanga v R, in which the Court of Appeal said burglary of a dwelling house “at the relatively minor
14 Sentencing Act 2002, s 85.
15 Police v Jensen, above n 1, at [12].
end of the scale tends to attract a starting point of approximately 18 months’ to two years and six months’ imprisonment”.16
[14]In support of his submission, Mr Galler referred me to Newton v Police and
Nelson v Police.17
[15] In Newton, Kós J made the point that Arahanga does not purport to be a tariff case, or even to set a minimum 18-month starting point for the type of offending with which it is concerned.18 The offender in Newton conducted a similar burglary, stealing a television, and jewellery valued at $2,000. The jewellery was never recovered. Kós J reduced the District Court’s starting point of two years’ imprisonment to 15 months. Mr Jensen submits a starting point of 14 months’ imprisonment would have been appropriate in the present case because Mr Jensen stole goods of a lesser value.
[16] In Nelson, the offender had been sentenced on numerous charges but his lead offence was a burglary of a residential address, to which he forced entry through a window and at night. The District Court Judge took a starting point of 18 months’ imprisonment. Hinton J considered Newton and several cases concerning sentences for burglaries of residential properties, entailing forced entry and the stealing of property, in which the starting points ranged from 12 to 17 months’ imprisonment.19
[17] Although Hinton J substituted a starting point of 14 months’ imprisonment, it is important to note the Judge did not know whether Mr Nelson had actually entered the house, whether any of the occupants were present, or whether Mr Nelson took anything from the address. Hinton J made it clear the outcome might have been different otherwise.
[18] Tutakangahau v R, cited for the various propositions in [2] above, was itself a second appeal against sentence for burglary, in that case of two tents in a camping
16 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].
17 Newton v Police [2012] NZHC 2829; and Nelson v Police [2019] NZHC 2434.
18 Newton v Police, above n 17, at [9].
19 McKee v Police [2012] NZHC 2684; Blissett v Police [2013] NZHC 156; Tairi v Police [2015] NZHC 187; and Moeroa v Police [2015] NZHC 2226.
ground.20 The Court of Appeal determined the starting point of 15 months’ adopted in the District Court was too high, and should not have exceeded 12 months’ imprisonment. In doing so, the Court referred to Newton and to Kati v Police.21 In Kati, the Court adopted a 14-month starting point for an offender who forced entry to a neighbouring residential property and stole items valued at $900, similar to this case.
[19] As the Judge said, the “stand-alone” starting point for offending is relevant to the uplift to be applied. Having regard to the cases cited to me (and quite possibly not to the Judge), I accept the Judge’s “at least 18 months’” was too high and should have been 14 or 15 months’ imprisonment. Standing back, and having regard to the gravity of the offending as a whole, a starting point of no more than 36 months’, or three years’, imprisonment would have been proportionate.
Discount for youth
[20] The Judge declined a discount for youth on the grounds much of the offending was not spontaneous; Mr Jensen had “multiple previous convictions”; Mr Jensen had received “a number of rehabilitative sentences in the past”; and Mr Jensen had failed to comply with Court orders on many prior occasions.22
[21] Mr Galler submits the Judge erred in declining a discount for youth and submits a discount of 10 to 15 per cent ought to have been allowed. Mr Kang submits the Judge did not err and that nothing in the circumstances of this case called for a discount for youth.23 Mr Kang also submits it would have been open to the Judge to uplift the starting point for Mr Jensen’s prior convictions, so the two — that is, an uplift for prior criminal history and a discount for youth — “netted off”. If I do not accept these submissions, Mr Kang submits any discount should be no more than 10 per cent.24
[22] Mr Galler’s first point is that Mr Jensen was eligible for a discount for youth, given his age at the time of the offending, that is 21 and 22. I accept that submission.
20 Tutakangahau v R, above n 3.
21 Newton v Police, above n 17; and Kati v Police HC Napier CRI-2011-441-19, 11 July 2011.
22 Police v Jensen, above n 1, at [14].
23 Huata v R [2013] NZCA 470 at [32].
24 R v Penewi [2019] NZHC 479.
Discounts, and of more than 10 per cent, have been given for offenders of a similar or greater age on the basis they continue to be deficient in reasoning, impulse control and judgment.25
[23] Secondly, Mr Galler submits much of the offending was impulsive and spontaneous. I accept this as regards the other offending, but I do not have sufficient information to know whether the burglary and robbery could be so described. Certainly, there was nothing before me to suggest Mr Jensen had good reason to be in the foyer of the apartment building where he committed the robbery.
[24] Thirdly, Mr Galler submits an offender’s prior history, whether in the Youth Court or District Court, does not preclude a discount and, in fact, is irrelevant. Mr Galler referred me to Vaeau v Police, in which, apropos of Youth Court notations,
Thomas J said:26
[55] … Youth Court notations should not alter the discount which would otherwise be given for youth because previous history has no bearing on the reasons for which considerations of youth are relevant (for example, neurological factors which can lead to a reduction in culpability of young people compared to adults).
[25] I agree with this statement and note also the offenders in Matangi v Police, Nelson and Su’e v Police received discounts for youth, despite having prior convictions.27
[26] Fourthly, Mr Galler submits Mr Jensen has demonstrated the potential to refrain from offending, and therefore for rehabilitation. Mr Galler also submits that, as Mr Jensen has never previously been sentenced to imprisonment, the term the Judge imposed has the potential to be “crushing”, that is, would have a disproportionately severe impact on Mr Jensen because of his age.28
25 Matangi v Police [2018] NZHC 1479; Nelson v Police, above n 17; and Su’e v Police [2019] NZHC 2501.
26 Vaeau v Police [2015] NZHC 1972.
27 Matangi v Police, above n 25; Nelson v Police, above n 17; and Su’e v Police, above n 25.
28 Sentencing Act, s 8(h).
[27] This fourth submission encompasses two reasons why youth may be relevant to sentencing — scope for rehabilitation and the crushing effect of imprisonment on a young person.29
[28] As to rehabilitation, Mr Jensen has Youth Court notations arising from offending in 2010 to 2012, when he was aged 15 to 17. Most are for relatively inconsequential matters, but there is one wounding with intent to cause grievous bodily harm for which he was subject to several months’ supervision.
[29] At the time he was sentenced in the present case, Mr Jensen had convictions in the District Court for resisting and assaulting police; two for wilful damage; and one for behaving threateningly. A burglary in July 2013, when Mr Jensen was aged 18, and three breaches, in 2014, of conditions of sentences of intensive supervision and/or community detention were the closest in time to the present offending.
[30] Mr Galler’s point is the burglary in 2013 and the burglary and robbery in this case were three years’ apart, and there was also a hiatus in offending for two years when Mr Jensen was trying to avoid the police and sentencing for this offending. This is not to condone Mr Jensen’s behaviour over that two years, but I accept Mr Galler’s submission that Mr Jensen has the ability to refrain from offending. A Provision of Advice to Courts report of November 2019 also gives some cause for optimism. Mr Jensen said the only explanation he could provide for his offending was his long-standing and excessive use of alcohol and illicit substances; that he could not afford such things in the period in which he was trying to avoid the police; and that he wished to address his offending and had previously commenced a rehabilitative programme with Community Alcohol and Drugs Services.
[31] As to Mr Galler’s submission the sentence may be crushing, Mr Jensen’s most significant sentence prior to this was three months’ community detention for his burglary in July 2013. For a young person to proceed from there to a sentence of imprisonment of two years, nine months’ is a very substantial increase in duration and severity.
29 Churchward v R [2011] NZCA 531 at [77].
[32] In support of his submission that no discount for youth was warranted, Mr Kang referred me to Kino v Police, in which Heath J’s discount for youth was matched by his uplift for Mr Kino’s prior convictions, the two cancelling each other out.30 The important point in the present case, however, is the Judge’s reasons for declining a discount did not include that such would have served only to offset an uplift he would otherwise have applied for prior convictions. Rather, the Judge thought Mr Jensen should have learnt his lesson from his prior convictions. As I have said, prior convictions are not determinative.
[33] Mr Kang also referred me to Skipper v Police, in which Toogood J declined Mr Skipper’s appeal against sentence for motor vehicle offending and two burglaries when he was aged 21.31 In one burglary, Mr Skipper had broken into a school and stolen laptops, computer screens, computers, and other equipment to a value of
$40,000, and had caused $8,000 worth of damage in gaining entry. Mr Skipper committed this offending having already been sentenced to imprisonment for aggravated robbery. The District Court Judge had declined a discount for youth and also imposed a minimum period of imprisonment. Toogood J was not persuaded a reduction in sentence was required on account of youth, given the seriousness of the offending and because he did not consider it impulsive. However, he did take youth into account in reducing the minimum period from 28 months’ imprisonment to 24 months’ imprisonment.
[34] Skipper evidences a well-accepted proposition that it is not inevitable a young offender will receive a discount for youth.32 Nothing more than that can be taken from it in the present context, as the facts are very different.
Decision
[35] The important matters are that Mr Jensen’s history shows he has the potential to refrain from offending and therefore to rehabilitate, and the impact on him of a lengthy sentence of imprisonment would be disproportionately severe, even if
30 Kino v Police [2012] NZHC 2570 at [20]-[21].
31 Skipper v Police [2012] NZHC 783.
32 Pouwhare v R [2010] NZCA 268 at [96].
warranted for an adult offender. For these reasons, I am satisfied a discount for youth ought to have been given.
Guilty pleas
[36] The Judge gave a discount of 15 per cent on account of Mr Jensen’s guilty pleas. He declined to give more because Mr Jensen had wasted much Court time and had avoided police for the two-year period to which I have referred. Mr Galler submits the discount ought to have been 20 per cent because the guilty pleas were entered early on. They may have been but Mr Jensen’s subsequent actions detracted from them. I accept Mr Kang’s submission there was no error on the part of the Judge on this issue. A discount of 15 per cent was the most Mr Jensen could reasonably expect in those circumstances.
Conclusion
[37] On the basis of the authorities to which I was referred, I am satisfied the effect of the uplift for the burglary was to make the ultimate starting point wholly out of proportion to the gravity of the overall offending and should not have exceeded three years’ imprisonment. I also propose to allow Mr Jensen a five-month, about 13 to 14 per cent, discount for youth. This, with the reduction for guilty pleas, brings Mr Jensen’s end sentence to two years, three months’ imprisonment.
Result
[38] I allow this appeal. I vary the sentence imposed on the charge of robbery committed on 5 July 2016 from two years, nine months’ imprisonment to two years, three months’ imprisonment.33 All other sentences remain unchanged.
Peters J
33 Criminal Procedure Act, s 251.
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